Citation Nr: 21008083 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-33 460 DATE: February 11, 2021 ORDER The claim for service connection for chronic fatigue syndrome is dismissed. The claim for service connection for muscle pain in the back and legs is dismissed. Service connection for sleep apnea is granted. An initial compensable rating for chronic bronchitis is denied. REMANDED Service connection for depression is remanded. Service connection for a right knee condition is remanded. Service connection for a back condition is remanded. An initial compensable rating for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. In March 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdraw his appeal concerning his claims for service connection for chronic fatigue syndrome and muscle pain in the back and legs. 2. Competent evidence links the Veteran’s sleep apnea to service. 3. The Veteran’s chronic bronchitis has not been manifested by FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for chronic fatigue syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for service connection for muscle pain in the back and legs have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for initial compensable rating for chronic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6600. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1990 to January 1992. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in November 2012. A transcript of the Veteran’s March 2019 testimony before the undersigned Veterans Law Judge is of record. Withdrawals 1. Service connection for chronic fatigue syndrome 2. Service connection for muscle pain in the back and legs The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. During the March 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran’s attorney knowingly and with understanding of the consequences withdrew the appeal concerning the claims for service connection for chronic fatigue syndrome and muscle pain in the back and legs. As the Veteran has withdrawn his appeal concerning these claims, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning these claims and they are dismissed. Service Connection 3. Service connection for sleep apnea Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303. The Veteran seeks service connection for sleep apnea, essentially asserting that symptoms of this condition began in service and continued until he was diagnosed. A July 2007 sleep study diagnosed severe obstructive sleep with oxygen desaturation. Since the Veteran has been diagnosed during the appeal with sleep apnea, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service. The Veteran underwent several VA examinations in September 2012. During an examination conducted in conjunction with the claim for chronic fatigue syndrome, the examiner stated that weight gain during active duty service likely lead to his obstructive sleep apnea and that his fatigue is not chronic fatigue syndrome but related to severe obstructive sleep apnea. Resolving all doubt in favor of the Veteran, the Board finds that service connection for sleep apnea is warranted as directly related to in-service weight gain. Increased Rating 4. Entitlement to an initial compensable rating for chronic bronchitis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Service connection for chronic bronchitis was granted in the November 2012 rating decision that is the subject of this appeal. A noncompensable (zero percent) rating was assigned under 38 C.F.R. § 4.97, Diagnostic Code 6600, effective April 13, 2011. Diagnostic Code 6600 provides the rating criteria for chronic bronchitis. A 10 percent rating is assigned for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted; a 30 percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted; a 60 percent rating is assigned for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit); and a 100 percent rating is assigned for FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. Regulations provide that when evaluating based on pulmonary function testing (PFT’s), post-bronchodilator results are to be used in applying the rating criteria unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). The Veteran seeks an initial compensable rating for chronic bronchitis. The only assertion raised in conjunction with this claim was that the Veteran should be rated analogously under Diagnostic Code 6602 for bronchitis that requires intermittent bronchodilator treatment. However, Diagnostic Code 6600 is the appropriate diagnostic code to apply in this case. Diagnostic Code 6602 provides the rating criteria for bronchial asthma, but the Veteran’s service-connected disability is chronic bronchitis, which has its own rating criteria found at Diagnostic Code 6600. The Court of Appeals for Veterans Claims held in Copeland v. McDonald, 27 Vet. App. 333, 338 (2015), that when a condition is specifically listed in the rating schedule it may not be rated by analogy. See Suttmann v. Brown, 5 Vet. App. 127, 134 (1993) (providing that “[a]n analogous rating...may be assigned only where the service-connected condition is ‘unlisted.’”). For this reason, Diagnostic Code 6602 is not for application. The preponderance of the evidence is against the assignment of a compensable rating for the service-connected chronic bronchitis at any time during the appeal period. In order to merit the assignment of the next highest (10 percent) rating provided under Diagnostic Code 6600, the chronic bronchitis must be manifested by FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. The only pulmonary function testing of record is that conducted at the time of the September 2012 VA examination; there is no indication that the Veteran has received VA or private treatment related to his condition. During the VA examination, post-bronchodilator results showed FEV-1 was 95 percent predicted, FEV-1/FVC was 84 percent; and DLCO was 90 percent predicted. The examiner remarked that the Veteran’s PFT was consistent with mild chronic bronchitis with FEV1 diminished disproportionately and reduced FEV1/FVC ratio. Since these findings do not support a 10 percent rating under Diagnostic Code 6600, the Veteran’s claim for a compensable rating is denied. REASONS FOR REMAND 1. Service connection for depression is remanded. 2. Service connection for a right knee condition is remanded. 3. Service connection for a back condition is remanded. The examiner who conducted the September 2012 VA examinations related to these claims only provided an opinion regarding whether the claimed conditions were related to the Veteran’s service in Southwest Asia rather than whether they may be directly related to service in general. During the hearing, the Veteran’s attorney also suggested the depression could be related to sleep apnea. Addendum opinions are needed. 4. Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded. During his hearing, the Veteran testified as to the current presence of bumps and irritation on his face. This disability was last examined over eight years. A contemporaneous examination is needed. Updated treatment records should also be requested. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his pseudofolliculitis barbae and his claimed depression, back and right knee disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain an addendum medical opinion on the Veteran’s claim for service connection for depression. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. After review of the claims file, the examiner is asked to specifically address whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed mild depressive disorder manifested in service or is otherwise related to service, or is caused or aggravated (worsened beyond normal progression) by the now-service connected sleep apnea. The examiner should explain why or why not. 3. Obtain an addendum medical on the Veteran’s claim for service connection for the right knee and back conditions. If a new examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, the examiner is asked to specifically address whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed right knee status post repair of meniscus tear and right knee chondromalacia patella; and/or degenerative disc disease of the lumbar spine manifested in service or are otherwise related to service. The examiner should explain why or why not. 4. Schedule the Veteran for a VA examination to determine the current severity of the pseudofolliculitis barbae. The claims file should be reviewed by the examiner. All symptomatology associated with the pseudofolliculitis barbae should be reported and the examiner should address the potential symptomatology that would be manifested during a flareup if the Veteran is not experiencing a flareup at the time of the examination. If it is not feasible to discuss potential symptomatology during flareup, the examiner should explain why not. 5. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.